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February 25, 2016

9/11 Defendant Testifies To Abusive Conditions of Confinement

By Whitney-Ann Mulhauser

On Wednesday morning Ramzi bin al-Shibh, one of the five 9/11 defendants, testified for several hours before a military commission about the conditions of his detention at Guantanamo Bay. Bin al-Shibh claims he was subjected to a wide range of questionable treatment and conduct during his detention, some which may amount to cruel, inhuman, or degrading treatment.

Bin al-Shibh calmly testified in English and clearly articulated his claims of ill treatment. He described the various conditions he has endured since he arrived at Guantanamo in 2006, including allegations of a very cold cell; banging on the walls; artificial bird noises projected on loud speakers; targeted vibrations moving from his stomach to his legs to his feet; and various disruptive noises in the shower, toilet, floor drains, and fences.

Bin al-Shibh thinks the purpose of the noises and vibrations is to harass him and disrupt his ability to work with his attorneys and participate in his legal proceedings. He noted that it was impossible for him to know who was intentionally making the noises and vibrations and stated that it could perhaps be the prison guards, the CIA, or, jokingly, even North Korea.

Bin al-Shibh believes the noises and vibrations are deliberate because he was subjected to similar treatment at CIA black sites before he was transferred to Guantanamo. His treatment regarding sensory and sleep deprivation is detailed in the Senate Select Committee on Intelligence’s report on CIA torture. Additionally, bin al-Shibh said that many of the detainees have heard the artificial bird noises on the loud speakers and that another detainee told him he felt the vibrations while recovering in the detention facility’s hospital. Bin al-Shibh also noted that when severe weather cuts the power on the base the noises cease completely, supporting his claim that the noises are mechanically produced rather than naturally occurring.

The prosecution proposed four possible theories in response: (1) that perhaps the noises and vibrations are in fact occurring; (2) that bin al-Shibh is hallucinating or imagining the noises and vibrations; (3) that the noises and vibrations are occurring naturally; or (4) that he is lying as part of his jihad against the United States. The prosecution never indicated it agreed with the first theory, and focused most of the questions on the second and fourth theories.

The prosecution tried to further develop the fourth theory, questioning bin al-Shibh about inappropriate comments he allegedly made to female guards and asking him if he thought he was a “warrior” against the United States. Bin al-Shibh responded that he could not answer that question without consulting his attorneys, at which point Judge Pohl explained that bin al-Shibh could not object to the questions, only his attorney could. On cue, bin al-Shibh’s attorney objected and the line of questioning ended.

Bin al-Shibh acknowledged that he sometimes behaves badly as a result of the chronic noises and vibrations. He admitted to calling the guards names, yelling, and once damaging a surveillance camera. However, he also testified that some guards had been very helpful, and that the noises had stopped after he had complained to certain guards who no longer work at the facility.

Bin al-Shibh explained the detrimental effects of the noises and vibrations. He testified that he has not slept for more than four to six hours a night since 2002, when he was taken into U.S. custody. Sometimes he cancels legal meetings with his attorneys because of the noises, and other times he is unable to come to court. Bin al-Shibh testified that the noises and vibrations have turned his life “upside down.” He cannot concentrate, read the legal documents regarding his case, or do the “homework” his attorneys send to him. He cannot eat, sleep, or pray. As further proof of harassment, bin al-Shibh explained that he is under 24 hour video surveillance and that the vibrations and noises start or increase whenever he sits down to write letters or work on his laptop.

Several psychiatrists and psychologists have met with or reviewed bin al-Shibh’s case and complaints. Some of these psychologists met with him while he was detained at CIA black sites. Understandably, bin al-Shibh does not trust the doctors who visit him in detention. As the Senate torture report reveals, medical professionals helped develop sleep disruption and deprivation techniques similar to the ones bin al-Shibh has complained about.

Bin al-Shibh testified that when he complained about the vibrations and noises to the doctors, they increased and he was involuntarily given injections and oral medication that made him feel “dead.” He testified that he laid in bed for 24 hours and could not move or feed himself. He said that this feeling was worse than the torture he endured at CIA black sites.

Bin al-Shibh also testified that no one has come to investigate his cell or seriously look into his allegations. In fact, he claims that the guards are deliberately indifferent to Judge Pohl’s previous order to cease any such activity that was occurring. Furthermore, journalists and human rights groups have been denied access to Camp 7, where the 9/11 detainees are held.

Defense attorneys are rarely permitted to enter Camp 7, and if they are allowed in they are not permitted to discuss what they see. The conditions at Camp 7 remain shrouded in secrecy. During bin al-Shibh’s testimony the “red light” was triggered and the video feed was cut when bin al-Shibh started to describe the building material and entrance corridor at Camp 7.

Although neither side discussed the applicable law related to his complaints, if bin al-Shibh’ allegations can be proven, he likely has legal claims under both domestic and international law. If the U.S. Constitution applies to Guantanamo, he may have an Eighth Amendment claim based on the substantial risk of harm he has suffered to which the prison officials were deliberately indifferent.

Additionally, treatment of this type likely violates the prohibition on cruel, inhuman, or degrading treatment and punishment. Under domestic law, bin al-Shibh must show that those responsible were specifically intending to inflict severe physical or mental pain or suffering with the alleged conduct. Similarly, under the United Nations International Convention Against Torture—to which the United States is a party—bin al-Shibh must show that those responsible were intentionally inflicting severe mental or physical pain with the vibrations and disruptive noises.

If these allegations are true, they further undermine the legitimacy of detention at Guantanamo and the military commissions. The case against the alleged perpetrators of the 9/11 attacks should not be weakened by any illegal conduct by the U.S. government as it would do little to secure justice for the victims of 9/11. 

In the meantime, the 9/11 hearings continue this week, with no sign of the trial actually starting.